How Unjust Family Laws Are Keeping LGBT Parents Away From Their Children
Even as public perception shifts and marriage equality gains headway, LGBT parents, who are raising an estimated 6 million children in the U.S., face discriminatory parental and adoption rights. Many trans parents especially have to choose between retaining custody of their children and coming out.
Last week, Allison Woolbert saw her children for the first time in two and a half years. Her daughter made two paintings for her to mark the occasion: One said, "This is the Day," and the other said, "I Love You."
Woolbert, a transgender woman in New Jersey who transitioned several years ago, was overjoyed seeing her daughter and son again, now 12 and 15 years old. But she missed out on a lot of important time during their adolescence, as did they.
"I was married for 13 years, as a man, to a woman," Woolbert said. By the end of the relationship, she was deeply depressed and suicidal. Woolbert had been seeing a therapist for five years, but remained completely closeted about having gender dysphoria, a condition marked by identification with a different gender than the one assigned at birth.
With regard to making the decision to transition, "I don't think people know the pain," Woolbert said. "I didn't want to transition. I did everything I could to avoid it for 45 years."
Woolbert was afraid when she came out to her wife. She feared losing her family, her means of employment, and her kids, whom she described as being "everything" to her. A technology professional who was unemployed at the time, she was afraid people wouldn't hire her or be willing to do business with her.
Her wife told Woolbert that she wasn't a lesbian and that she refused to live in the house with another woman. "She said she didn't want to be my friend. She said, 'Here's what's going to happen: You're going to go back to work, and you're going to forget about this transition...or you're going to move out, and I am going to take everything."
It was a terrible ultimatum. But, Woolbert said, "There comes a time to make a decision, and mine was, 'Do I continue living [as a woman], in the hopes my children will understand me some day, or do I not continue living at all, which will only hurt my children and increase their chances of suicide someday?'"
Woolbert began to live as a woman, moved out, and faced divorce. Going into court as a transgender woman, she said that "the chance of the judge listening to me was zero. The judge that had this case is an evangelical Christian in South Jersey." Her ex-wife won total custody control over the children — and the right to decide when or even if they saw their father again.
Until she went through gender reassignment in the fall of 2010, three years ago, Woolbert said her ex had hoped "it was just a phase that I'd pass through," and she allowed Woolbert to see her children periodically. But after the surgery, the visits came to an abrupt stop. For more than two years, the children could only talk to Woolbert on the phone or via Skype, which would be strictly monitored. (Woolbert declined to have BuzzFeed contact her ex or children, citing the tenuous nature of her visits.)
Woolbert said her kids both adapted to the change, call her "Naunny" now, and that, "My daughter has never had a single issue over it. In many ways, though, [my son] lost a father in his eyes, and the people of influence in his life reinforced that belief." From a forced distance, she worries a lot about her kids being of an age when they may encounter bullying. She is especially concerned for her son, who is visually impaired and just started a new school. It has pained Woolbert to not be able to go to her son's school or attend her daughter's soccer games when her daughter begs her to come.
But Woolbert has told her kids they are not going to do anything against their mother's wishes, and that she knows "my presence alone can disrupt their lives in a reasonably conservative community where they are." During the past few years, she has tried to "minimize the pain and maximize the love" from afar, and has channeled some of her energy into fighting transphobia.
Still, even though she doesn't regret coming out, Woolbert said the pain is "excruciating. You are being cut off from the people you love and are being told that, basically, your gender is worthless, and that you are a mental patient."
"Of all the things I was afraid of," she said, "a good majority of them have happened." She lost her family of origin, her spouse, her "belief system. I lost my business, which I had to rebuild. I lost my home, I ended up homeless. I lost all of my friends of the past 15, 20 years."
"But worst," she said, "I lost my kids, which was my biggest fear of all."
States of Limbo
The pain children experience over being taken away from their LGBT parents has often just been considered collateral damage in the United States. Like homosexuality, being transgender was once considered by the medical establishment to be a mark of insanity, the kind of disorder kids needed to be protected from witnessing, no matter how much it might hurt parent and child.
However, even though doctors have largely dropped this stigma, judges and legislators worldwide have not. As Yale professor George Chauncey, whose expert testimony on the history of gay discrimination has been cited in landmark historic Supreme Court cases such as Lawrence v. Texas and both of this year's marriage equality decisions, wrote regarding the proximity of homosexuals to children in America after World War II:
Homosexuals were depicted in ways that drew on patterns of demonization that had become familiar and habitual through their widespread use to demonize Jews as well as communists … In an era when fears of political and criminal conspiracy were especially powerful, homosexuals were depicted as part of a formidable and invisible conspiracy that threatened American culture. And like Jews, they were depicted as a threat to children.
This sentiment was also behind the National Organization for Marriage President Brian Brown's various campaigns and Anita Bryant's "Save Our Children From Homosexuality" campaign, which was linked to the Briggs Initiative that Harvey Milk defeated.
Recently, for example, Brown traveled to Russia to testify in favor of a bill that would remove children of LGBT parents within Russia. (This was after Russian President Vladimir Putin signed legislation to ban foreign adoptions by LGBT parents this summer and, in October, ended all adoptions to Sweden, as part of a court order to ban adoptions to any country that even recognizes same-sex unions.) Despite the bill being withdrawn from the Duma last week, the broader cultural sentiment remains there. Further, Russia's recent actions have illuminated how LGBT people worldwide face discrimination, not just in the workplace or in the right to form romantic relationships, but in arguably the most fundamental relationship of the human race: as parents.
Here in the United States, the Williams Institute at UCLA School of Law estimates that, according to 2010 census data, it's possible that up to 6 million American children are being raised by LGBT parents. Legally, these millions of families are in a state of limbo. Too often, the children of LGBT parents only have a legal relationship with one parent, while their second mom or second dad is considered a stranger to them in the eyes of the law. And, as countless custody battles like Allison Woolbert's can show, even a biological connection can fail to keep an LGBT parent in the life of a child.
Marriage equality, now the law in 14 states and the District of Columbia, can provide some legal protection for LGBT parents and their kids. Still, "No state is perfect, and there are still issues that [LGBT families] face in every state, depending on their situation," said Cathy Sakimura, family law director at the National Center for Lesbian Rights. Marriage law and parental law are not exactly the same thing, and the overwhelming majority of states make it impossible for LGBT-headed families to receive the same protections as straight-headed families. At present, 36 states don't allow same-sex marriage and 29 don't legally guarantee same-sex couples an ability to adopt.
This patchwork nature of marriage and parenting protections in the United States is exacerbated by the lopsided geographic realities of where marriage equality exists and where children of LGBT parents are being raised. For the most part, states with marriage equality are cloistered in the upper East Coast and along the West Coast, with a smattering in the upper Midwest. Meanwhile, as The New York Times reported in 2011, LGBT-headed families are actually most common in Southern states. Of the 10 states the Williams Institute found had the highest percentage of same-sex couples raising children, not a single one allows same-sex marriage. Only one of those 10 states — Montana — allows same-sex adoptions statewide, and eight are legally precarious for LGBT parents.
Ironically, the Williams Institute found that the No. 1 state for same-sex couples raising children — in which 26% of couples have kids — is Mississippi, which bans LGBT couples from adopting outright.
There is a "prohibition on adoption" by LGBT people in the state, according to Bear Atwood, legal director for the American Civil Liberties Union of Mississippi. She explained that a child cannot be adopted in a home in which "there are unmarried adults living in that home." So, a queer person could theoretically adopt a child in Mississippi, but the parent could never have a partner of any kind sleep over. Three other states — Nebraska, Wisconsin, and Utah — likewise don't allow same-sex couples to adopt children, period. Atwood said the ACLU hasn't ever mounted a lawsuit to challenge this prohibition in Mississippi because gay couples "know that they can't adopt, and so no one even tries."
Such bans can have implications beyond state lines. Atwood describes a case involving neglectful parents who had one child removed from their home when they were living outside of Mississippi. A same-sex couple in Nevada adopted the child. The parents moved to Mississippi, where authorities took a second child from them. The parents chose to sign away their rights, with the thought that their second child would also wind up with the same-sex couple in Nevada. But Mississippi's Department of Human Services, Atwood said, "wouldn't allow the child to leave the state for same-sex parents, already in custody of the child's sibling, in order to keep some element of the family intact." (Atwood adds that some "very creative" legal thinking ultimately made a solution possible, but the state fought it every step of the way.)
An Unbearable Choice
Despite the high number of LGBT parents raising children in the Magnolia State, "Mississippi is not the best place to be challenging issues of [LGBT] parenting," Atwood said.
Infamously, in 1999, Mississippi's Supreme Court ruled in a 6-3 decision that David Weigand could not have custody of his 15-year-old son because Weigand was living with a male partner. Weigand's ex-wife had married a convicted felon, and Weigand sued for custody after his son called 911 to report that his stepfather was beating his mother and threatening to kill both of them.
The court found that Weigand's son would be better raised by his stepfather — who had an established record of domestic violence — than by two gay men. As the dissent wrote in the case, "The majority believes a minor is best served by living in an explosive environment in which the unemployed stepfather is a convicted felon, drinker, drug-taker, adulterer, wife-beater, and child-threatener."
To obtain custody in such situations, LGBT parents are sometimes forced to make an unbearable choice. "I have had cases where a partner has had to move out in order for the other partner to keep custody of their child," said Sakimura of the NCLR, "and that is a challenging and difficult thing to happen in your life, for everyone involved. It's difficult for the partners to maintain their relationship, but it is stressful and painful for everyone, including the children," who lose contact with someone who has become a stepparent.
The Weigand case was at least a custody battle between two parents. But when it comes to removing children from LGBT homes, courts have gone so far as to award custody to a nonparent altogether.
In the 1993 Virginia case Bottoms v. Bottoms, Sharon Bottoms, a lesbian, lost custody of her son Tyler Doustou. Sharon's mother, Kay Bottoms, sued to save her grandson from life with a homosexual mother. There was no history of abuse or neglect, and even the boy's father, Dennis Doustou, testified that he thought Tyler should remain in his mother's custody. The case went all the way to the Virginia Supreme Court, which ruled in Kay Bottoms' favor and upheld the lower court's decision to remove Tyler from his mother. While Sharon Bottoms was allowed to have visits with her son, she could not have her female partner present during them.
There was a legal justification the courts used in the Weigand and Bottoms cases, if a spurious one. As Leslie Cooper of the ACLU's LGBT Rights Project explained, prior to the repeal of Lawrence v. Texas, in which the Supreme Court found that laws against consensual sodomy between adults were unconstitutional, "it was a crime to have same-sex sex." As a result, courts could legally justify that any gay or lesbian parent was an admitted sodomite, routinely engaging in a crime, as a legal rationalization. (This line of thinking is not exactly outdated: Anti-LGBT sentiment is still such a part of Virginia political culture that Attorney General Ken Cuccinelli recently asked the U.S. Supreme Court to let the Old Dominion make sodomy illegal once more while running for governor. The high court declined.)
Though a kind of legal discrimination continues today, a full decade after Lawrence, judges are far less likely to come out and explicitly say a parent is unfit because of sexual orientation or gender identity. A more common way is for courts to say a parent can't be denied the ability to adopt children (or win custody of their own children) for being LGBT, exactly, but parents can't have custody of kids in a home with an unrelated adult. And without marriage equality in states like Mississippi, Atwood pointed out, a same-sex partner "will always be considered an unrelated adult living in the home, no matter how long the couple has been together."
One state over, the ACLU said, a case is currently being decided that challenges this very concept. According to the organization (the case involves a minor, and there are no public briefs available on it), it involves a child with a gay father. The court has found that there is nothing wrong with the father or his partner, but a lower court has prohibited the partner from sleeping over when the child is present. Tired of the expense and inconvenience of the partner moving into a hotel during chunks of the summer or on weekends, the father has taken his case all the way to the Arkansas Supreme Court.
As Creative as the Law Will Allow Them
Every legal expert who spoke with BuzzFeed said that, all over the country, judges' views, along with American public opinion, are evolving on LGBT family law. Sometimes judges try to be as creative as the law will allow them, though it can only let them do so much. Parents occasionally resort to trying to take their cases to jurisdictions within their state where a sympathetic judge might be sitting; alas, sometimes their cases can be heard in that jurisdiction, but often it needs to be heard where they live — and trying that tactic can be expensive.
Just as in Mississippi, where more than a quarter of same-sex couples have kids, all around the country same-sex couples are raising children. And laws that consider one parent the "real parent" and one parent a stranger are creating anxiety for everyone.
"Parents constantly worry about the law and the culture of discrimination," Atwood said. "They will wonder, Who can take our child to the emergency room? Or, Will the school talk to both of us, or only one of us, as parents?"
The best way for LGBT parents to address such ambiguity is to do a second-parent adoption, which is available in 21 states. The rules vary state by state (and sometimes county by county within the state, or even judge by judge within the county). Four states — Ohio, North Carolina, Louisiana, and Kentucky — don't allow second-parent adoptions. That said, such adoptions can cost thousands or even tens of thousands of dollars. "[Second-parent adoption is] like getting a will," Sakimura of NCLR said. Beyond the expense, "it's not something everyone thinks they will have to do and exactly wants to do," she said, until, sometimes, it's too late.
Indeed, one of the reasons children of LGBT parents need the legal protections marriage or a second-parent adoption provide has nothing to do with homophobia. Though not widely acknowledged in the LGBT community, one important reason is to give the second parent protection in the case of a split.
"I get phone calls from time to time saying, 'I haven't seen my child for a year because my [same-sex] partner won't let me,' and there's nothing we can do," said Cooper at the ACLU.
In some states, after a breakup (of a gay or straight couple), the court can protect the rights of children to see people who have been "psychological parents" to them. The first time this happened in New York State was when a Westchester County judge ruled in 2000 that a lesbian mother who was not the legal or biological mother of her children had demonstrated that she was the family's "breadwinner," and therefore could have weekly visits with her children while suing for custody. The mother with custody promptly appealed the ruling. Her lawyer was quoted saying, "Only a parent can get visitation. A parent is defined as either the biological or adoptive parent, and [the ex-partner] is neither."
An Even Harder Road
"Trans parents are where gay and lesbian parents were 20 or 30 years ago," said Sakimura of the NCLR. Courts around the country have implicitly and explicitly ruled that that being transgender is a reason to terminate parental visitation rights. Courts have also barred trans women from wearing women's clothing and trans men from dressing like men as a condition of seeing their children — just as they once told gay and lesbian parents they couldn't be out in front of their kids.
Indeed, even when being trans isn't cited as the reason a court rules against a parent, it's obvious when it affects a court's ruling. As Andrew Williams, a transgender man who sued to regain custody of his children in rural Texas in 2009, recalled, "I am walking into the county court to assert my rights as their mother, as a man. That is enough to make someone's head explode."
The judge, he said, was elected, and it would have been a big political risk for the judge to award custody to Williams, a transgender man who had recently transitioned.
Williams' 2009 court hearing was his final custody battle, and he lost. But he'd felt the need to try, especially since his children were being raised in a house where he said people were living with "criminal convictions for assault."
Williams was born anatomically female, raised a Southern Baptist, and married to a man as a teenager. Williams divorced from his husband when their two children were infants. Appearing as a heterosexual woman in the eyes of the court, Williams won primary custody in 1999, raising the kids throughout their formative years.
It wasn't until years later that the children's father decided to sue for custody, when Williams was living with a female partner. When he sued, Williams' said, "My ex made no hesitation about repeatedly saying that I was a lesbian, and that I was living with a woman, and that my lifestyle was not conducive to the well-being of the children." After practically the kids' entire lives — with the court admitting, Williams said, that it was a case of "two good parents" — it just took a two-and-a-half-hour hearing in 2006 for Williams' children to be taken away from their mother.
"In Texas, people generally think a mom can do a better job raising the kids than the dad," Williams said, reflecting on that 2006 case. "But with me, the question became, 'Can a lesbian mom do a better job than straight dad?' And the judge's answer was, 'No.'"
Though Williams said, "I have always been Andrew," he has had the unique experience of going to family court in Texas with the court seeing him as a heterosexual woman, a lesbian woman, and a transgender man. Curiously, he only won while being seen as a straight woman, even though no abuse or neglect was ever alleged. (In fact, by the latter cases, he'd gone to college, become a teacher, and eventually become a lawyer — the kinds of life actions that usually increase a court's idea of parental fitness.)
The American battles around LGBT parenting happen in the courts and state legislatures, sometimes hundreds or thousands of miles from where families live, but the results are felt painfully close to home. When Andrew Williams first lost custody of his children — whose diapers he'd changed and noses he'd wiped for so many years — his own father said to him, "What do you expect when you live your life in this way? You can't make those choices and live like that and expect people to be OK with it."